Appeal, No. 13, Feb. T., 1959, 6rom judgment of Court of Common Pleas of Luzerne County, May T., 1958, No. 32, in case of Mrs. Helen Bohnet, widow of Karl Bohnet v. Stegmaier Brewing Company. Judgment affirmed.
James T. Shea, with him Shea and Shea, for appellant.
E. C. Marianelli, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin and Watkins, JJ.
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In this Workmen's Compensation case the lower court entered judgment on an award in favor of the claimant, following the death of her husband. The facts are not seriously in dispute; the question here is whether the testimony is sufficient to support the conclusion of the board, on affirming the findings of the referee, that "Decedent's death was by accident within the course of his employment."
Karl Bohnet, claimant's husband, had been in the employ of the defendant brewery for about 17 years. In the late afternoon of Friday, September 5, 1952, he with a fellow employe went to the upper floors of the brewery to clean out a number of "blending tanks". They had been directed to clean the tanks on overtime at the end of their normal workday, in accordance with the practice of the company against allowing empty tanks, from which the beer had been drawn, to remain uncleaned over the weekend. Decedent had cleaned tank number 11 on the third floor of the building and was found dead in tank number 13 about an hour later. This tank was of steel, about 18 to 20 feet high and 14 feet in diameter and was glass lined. The only access to the tank was through a hole 16 x 20 inches. One could not walk on the floor of the tank because of its "egg shape" and the decedent, in accordance with the usual procedure had shoved a plank through the opening
[ 189 Pa. Super. Page 254]
into place against the opposite wall of the tank. The purpose of the plank was to provide a place for the workman to stand without danger of slipping while cleaning the tank with a hose and brushes.
Carbon dioxide gas is a product of fermentation in the production of beer and the witness Llewellyn - decedent's fellow employe - testified that because of the likelihood of this gas (even in the blending tanks) they check on each other while cleaning them, "because if you go in a gassy tank and anybody gets hurt, we are right there to help them out." The witness checked on Bohnet in tank 13 about forty minutes after he had last seen him; he testified that there then were about 18 inches of water in the tank. Water was running from the hose and it was later found that decedent's cap was covering the outlet at the bottom of the tank where it apparently had fallen; the cap acting "as a stopper" prevented the water from running off. He found the plank in place about 2 feet from the bottom of the tank. Bohnet's body was "jacknifed" beside the plank with both his feet and his head, face down, under water. He was dead and the witness pulled his body from the tank.
At the request of the coroner a post mortem examination was had by a competent and well-qualified pathologist at Hazleton State Hospital. The report in evidence did not attribute death to natural causes but Dr. Foldes who conducted the autopsy stated that from his examination he "could not prove drowning", nor death from a heart condition. The autopsy report stated the cause of death as "Undetermined" and the death certificate likewise stated "cause undetermined".
From the testimony at extended hearings, the referee found: "5. On Sept. 5, 1952 while cleaning the inside of vat No. 13, decedent became asphyxiated, as a result of ...